While pre-nups are supposed to serve as a roadmap for the division of assets in the event of a divorce, that does not mean that parties wont contest the interpretation and meaning of them when the time comes to enforce it. Even though they are intended to solve the financial disputes, high net worth divorces are different because of their very nature. When the value of the assets reaches the millions, parties can, with good reason, disregard the prenuptial agreement and instead contest a variety of reasons why it should not be followed.
A common argument used when contesting the execution of a pre-nup is not only that the value of the asset has grown during the marriage, but that this party influenced and impacted the growth substantially. For example, a husband is the owner of a business that has been in his name for years before he married. After the marriage, the business starts to become lucrative. The wife can try to prove she’s helped the value of that company increase through her actions, whether it be working in the office, helping with a project, meeting with and introducing him to new clients, or even taking care of the residence so that he could develop such a successful business. A judge could rule against the man if the spouse’s attorney can show that the spouse’s efforts made a significant difference in the value of the business.
New York pre-nup statutes are predominantly focused around the idea of fairness, and a drastic change in circumstances, financially speaking, could give rise to a claim that the pre-nup needs to be executed in an adjusted manner. So while having a pre-nup puts you in a substantially better position at the start of the divorce than without one, it is by no means a guarantee that all your assets you think are safe from division, will in fact be so. Moreover, with regard to the circumstances present at the time of signing as opposed to at the time of the divorce, in New York, neither party is under any obligation to disclose his/her finances before the signing of a prenuptial agreement. However, if the individual does disclose assets and distorts the value of those assets, the resulting prenup may be nullified by a judge.